MUYIDEEN v. NBA & ANOR (2021)

MUYIDEEN v. NBA & ANOR

(2021)LCN/5023(SC)

In The Supreme Court

On Friday, June 18, 2021

SC.454/2018

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Between

OLAYORI MUYIDEEN, ESQ. APPELANT(S)

And

1. NIGERIAN BAR ASSOCIATION 2. LEGAL PRACTITIONERS’ DISCIPLINARY COMMITTEE RESPONDENT(S)

RATIO:

POSTION OF LAW WHERE DECISION IS MADE WITHOUT HEARING

In Dr. Osaretin George 12 Ezebuwa v. NBA & Anor. SC.334/2019 of 18th June, 2021, I expressed the opinion that “deciding without hearing” is an aspect of a denial of fair hearing. EJEMBI EKO, J.S.C.

POSTION OF LAW WHERE ONE MEMBER OF A COURT OR JUDICIAL BODY DID NOT HEAR EVIDENCE

It is now firmly established in our jurisprudence, or administrative law, that where a Court or judicial body is differently consisted during the hearing or on the various occasions when it met, or where one member who did not hear evidence (either the whole or part of the total evidence) took part in arriving at the decision; the effect on the proceedings is to render them null and void: Adeigbe & Anor v. Kusimo & Ors (1965) LPELR-25226(SC); Taiwah III v. Egwudzi 2 WACA 52. This Court has been adopting and following this principle: that it amounts to denial of fair hearing for the judex or a member of a panel of quasi-judicial body to participate in rendering a decision without hearing either the whole evidence or part thereof, as can be seen from Nwalutu v. LPDC (2019) All FWLR (Pt. 997) 68 at 95, Reported as Nwalutu v. NBA (2019) 8 NWLR (Pt. 1673) 174; Ubwa v. Tiv Traditional Council Ors. (2004) 11 NWLR (Pt. 884) 427; Sokoto State Government v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466. EJEMBI EKO, J.S.C.

WHETHER VARIATIONS IN THE BENCH MAKES A JUDGMENT A NULLITY OR AMOUNT TO BREACH OF FAIR HEARING

It is our humble submission that the Committee’s proceeding and Direction in issue being quasi-criminal in nature, same members of the Committee that took the plea of the appellant ought to adjudicate over the matter to its conclusion. See the case of Gwarzo v. C.O.P. (2014) LPELR-23470(SC).
In the case of Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) page 365 at 378, 385, this Court held:
“The issue of composition of a Tribunal is intrinsic to the fulfillment of the fair hearing requirements of Section 36(1) of the Constitution. A Court or Tribunal’s constitution must be such that guarantees its independence and impartiality and guarantees fair hearing to the accused. Where the panel is constituted in such a way that it affects a person’s right to fair hearing, whatever decision is reached by such a panel will result in a nullity. Where some members of a Tribunal who gave judgment were not present throughout the proceedings, and did not hear all the evidence, this vitiates the whole trial, and an appellate Court has no option but to declare the whole proceedings before the tribunal a nullity. In the instant case, the membership of the Committee which found the appellant guilty of infamous conduct and directed that his name be struck out from the Roll of legal practitioners in Nigeria was not consistent.”
This Court further held:
“Though variations in the bench do no make a judgment a nullity, however such variatiuon makes the judgment unsatisfactory and liable to be struck out.” EJEMBI EKO, JSC.

WHETHER THERE COULD BE FAIR TRIAL WITHOUT FAIR HEARING

A fair trial cannot be said to have taken place since the rules of natural justice relating to fair hearing have been breached and the proceedings and Direction a nullity in the light of the breach. It is of no moment that a similar decision would have been reached in the absence of such infraction. See S.A.P. Ltd. v. Minister of Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391 at 407-408; Labour Party v. I.N.E.C. (2009) All FWRL 478 at 233 & 244, (2009) 6 NWLR (Pt.1137) 351; Porbeni v. Pabod Finance & Investment Co. (2001) FWLR (Pt.63) 84, (2002) 3 NWLR (Pt.754) 452; Madukolu v. Nkemdilim (1962) 1 All NLR 5 & 7, (1962) 2 SCNLR 341. EJEMBI EKO, JSC.

WHETHER A DECISION RENDERED BY A PANEL DIFFERENT FROM A PANEL CONSTITUTED DURING THE COURSE OF THE HEARING WILL AMOUNT TO BREACH OF FAIR HEARING

The settled position of this Court as held in: Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 885) 427 @ 436 at 438 C-E; Sokoto State Government v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 @ 497 A-B; 492-493 H-B; Nyesom v. Peterside & Ors. (2016) 7 NWLR (Pt. 1512) 452 @ 504-505 C-D; Nwalutu v. N.B.A. (2019) 8 NWLR (Pt. 1673) 174 @ 195 B-D & 195 B-G; Adeleke v. I.N.E.C. (2019) 6-7 SC (Pt. 1) 35; (2020) 11 NWLR (Pt. 1734) 17; Kunle Kalejaiye v. L.P.D.C. (2019) LPELR – 47035 (SC), (2019) 8 NWLR (Pt.1674) 365, is to the effect that where a decision is rendered by a panel which was differently constituted during the course of the hearing and some of the members of the panel who rendered the decision or contributed thereto were not present throughout the hearing, it amounts to a breach of the right to fair hearing. The proceedings and the decision predicated thereon are a nullity and liable to be struck out. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:

WHAT IS A COURT OF COMPETENT JURISDICTION?

WHAT IS A ‘KANGAROO COURT?’

Contradistinctively, a Court devoid of jurisdictional competence may be likened to a ‘Kangaroo Court’ properly so-called. Most interestingly, it is trite that a Kangaroo Court is a caricature, self appointed tribunal or mock Court in which the rules of law and justice are wantonly disregarded, perverted, or parodied:
Kangaroo Courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to “punish” team mates who commit fielding errors).
… A Court or tribunal characterized by unauthorized or irregular procedures, especially so as to render a fair possible proceeding impossible … A sham legal proceeding.
See Black’s Law Dictionary, 11th Edition 2019 (opcit) @ 448. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:

WHETHER COMPOSITION OF A COURT OF LAW OR TRIBUNAL IS FUNDAMENTALLY INTRINSIC TO THE FULFILLMENT OF THE REQUIREMENT OF THE RIGHT TO FAIR HEARING

Yet, it is a trite fundamental doctrine, that the issue of composition of a Court of law or tribunal is fundamentally intrinsic to the fulfillment of the requirement of the right to fair hearing, cherishingly enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended:
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:

WHETHER COMPOSITION OF A TRIBUNAL IS INTRINSIC TO THE FULFILLMENT OF THE FAIR HEARING REQUIREMENTS.

My noble Lord, the fact that this Court has reiterated in a plethora of formidable authorities, the importance of upholding the fundamental right to fair hearing of parties by the Courts in the course of administration of justice process is not controversial, at all.
Most particularly, not too long ago in the case of Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) 365, this Court had a cause to aptly hold:
The issue of composition of a Tribunal is intrinsic to the fulfillment of the fair hearing requirements of Section 36(1) of the Constitution. A Court or Tribunal’s constitution must be such that guarantees its independence and impartiality and guarantees fair hearing to the accused. Where the panel is constituted in such a way that it affects a person’s right to fair hearing, whatever decision is reached by such a panel will result in a nullity. Where some members of a Tribunal who gave judgment were not present throughout the proceedings, and did not hear all the evidence, this violates the whole trial, and an appellate Court has no option but to declare the whole proceedings before the Tribunal a nullity. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:

WHAT IS THE PRIMARY PURPOSE OF PROFESSIONAL DISCIPLINARY PROCEEDINGS

The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public confidence in the integrity of the profession, and to uphold proper standards of behaviour. See e.g. Bolton v. Law Society (1994) 1 WLR 512, 518, Per Sir Thomps Bingham MR; Gupta v. General Medical Council (2002) 1 WLR 1691, Paragraph 21, Per Lord Rodger.
See R. (On The Application of Coke-Wallis) v. Institute of Chartered Accountants In England And Wales (2011) LPELR-17806 (UK SC), Per Lord Collins @ 46 paragraphs D – F. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:

CARDINAL PRINCIPLE OF RIGHT TO FAIR HEARING

It is axiomatic, that upholding the cardinal principle of right to fair hearing, as cherishingly enshrined in Section 36(1) of the 1999 Constitution (supra), is inherent in the Judicial Oaths to which every Judge in this country subscribed: To administer justice to all the parties “without fear or favour, affection or ill-will.” As aptly postulated in Denton-West v. Muoma, SAN:
[T]he importance of a competent independent and impartial judiciary in preserving and upholding the rule of law cannot be overemphasized. There is no doubt that public confidence in the independence of the Courts, in the integrity of Judges that man such Courts, and in the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining the Judicial System of a nation. I think it was Mr. Justice Frankfurter, the eminent and fearless US Jurist, who once remarked that:
The Court’s authority… possessed of neither the purse nor the sword… ultimately rests on sustained public confidence in its moral sanction. See Baker v. Carri Supreme Court of USA (1962) 369 US 186.
See Denton-West v. Muoma, SAN (2007) LPELR-8172 (CA), (2008) 6 NWLR (Pt. 1083) 418 Per Saulawa, JCA (as he then was) @ 37 – 38. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:

EFFECT OF THE CONSISTENCY IN THE MEMBERSHIP OF THE LPDC DURING HEARING UNTIL THE DELIVERY OF ITS DECISION.

The consistency in the membership of the LPDC during hearing until the delivery of its decision goes to the issue of right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as altered). Where a member or members of a Court or Tribunal who were not present during the hearing culminating in its decision partake in the rendering of its decision, the result is to render the decision of the Court or tribunal a nullity. See Nwalutu v. NBA & Anor (2019) LPELR-46916(SC), (2019) 8 NWLR (Pt.1673) 174; Sokoto State Govt. of Nigeria & Ors v. Kamdex (Nig) Ltd. (2007) LPELR-3093 (SC), (2007) 7 NWLR (Pt. 1034) 466; Adeigbe & Anor v. Kusimo & Ors (1965) LPELR- ADAMU JAURO, J.S.C.:

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The appellant, a legal practitioner, was tried before the Legal Practitioners Disciplinary Committee (LPDC) and found guilty of infamous conduct. The LPDC thereafter, on 21st March, 2018, issued the following direction:
(i) That the 3 counts in the complaint are found proved against the respondent, Olayori Muyideen, Esq.
(ii) That you, Olayori Muyideen, is found guilty of infamous conduct in a professional sense punishable under Section 12(1)(ii) of the Legal Practitioners Act (Revised) as charged in all the 3 counts of the Complaint. We accordingly DIRECT THE CHIEF REGISTRAR OF THE SUPREME COURT OF NIGERIA as follows:
(iii) The name of the respondent Olayori Muyideen shall forthwith be STRUCK OFF the Roll of Legal Practitioners kept at the Supreme Court of Nigeria and shall cease from the date of this DIRECTION from carrying on the trade or business of a Legal Practitioner accordingly he is not to parade himself or allow himself to be paraded as a Legal Practitioner and he is not to engage in or participate in the practice of law in any manner or form forthwith.
(iv) We further direct as it is within our powers to do that the respondent within 30 days from the date of this Order i.e. today the 21st day of March 2018 refund or return to the petitioner Madam Elizabeth Abiola Gbolade of No. 5 Akhimien Street, Ijegun Alimosho Lagos the sum of N1,129,500.00 (One Million, One Hundred and Twenty-Nine Thousand, Five Hundred Naira) only through the complainant in this matter.
The CHIEF REGISTRAR OF THE SUPREME COURT is hereby DIRECTED to effect the above orders forthwith. We further order that NOTICE of this DIRECTION be immediately brought to the attention of the respondent by service on him personally or at his last known address (the presence of the respondent at the proceeding of this Committee where this DIRECTION is read shall be deemed to be sufficient personal service) and by publication in any edition of the PUNCH Newspaper and by publication in the Federal Gazette as required by law. Copies of this Direction must also be served on the President of the Nigerian Bar Association who will take steps to notify the General Council of the Bar, National Executive Committee and other organs of the NBA with the Direction of this Committee.
We also Direct that the entire judgment encompassing this Direction shall be brought to the attention of their lordships, the Chief Justice of Nigeria, President of Court of Appeal, the Honourable Chief Judges of the High Court of Lagos State, Federal High Court and High Court of States of the Federation, Heads of all other Courts in the FCT and in Nigeria, the Attorney-General of the Federation and the entire Attorneys General of the remaining 36 States of the Federation. The order shall also be served on the Inspector-General of Police, the Commissioner of Police of Lagos State and the respective Commissioners of Police in all the States of the Federation.
Dated at Abuja this 21st Day of March, 2018
(Sign)
Joseph Bodunrin Daudu, SAN
Chairman, Legal Practitioners Disciplinary Committee

Aggrieved by the Direction, the appellant has appealed. The appeal is predicated on two issues for its determination, to wit-
1. Whether having regard to the variations in the composition of the Committee at various times and stages of the proceedings, the Direction dated 21st day of March, 2018 given against the appellant by the Hon. Trial Committee were not done in utter breach of the appellant’s rights to fair-hearing; and thus, a nullity. (Distilled from grounds 4 & 5)
2. Whether the 2nd respondent was not wrong for not properly considering the relevant material fact and evidence placed before it in reaching the conclusion that the appellant is guilty of infamous conduct in a professional sense and consequently giving its direction against the appellant. (Grounds 1 & 2).

The facts germane for the determination of issue 1 are found ex facie pages 76, 80, 89 and 153 of the record. The PW1 commenced and concluded his evidence on 14th September, 2017 (at pages 76 & 77) before the Panel comprising J. B. Daudu, SAN – Chairman and four other members, namely: Hon. Justice Abdu Aboki, PJCA; Hon. Justice Marshall Umokoro, CJ Delta State, Nella Andem Rabana, SAN and Hon. Ahmed Mustapha

At the resumed hearing on 31st October, 2017 (pages 80 & 81) the panel that heard the evidence of the PW2 was made up of J.B. Daudu, SAN – Chairman, and 7 other members, that is, Hon. Justice Abdu Aboki, PJCA, Hon. Justice Nasiru Ajana CJ, Kogi State, Hon. Justice Marshall Mukoro, CJ, Delta State; E. C. Ukala SAN; Nella Andem Rabana, SAN; Tijjani Inuwa-Dutse, mni and Ahmed Mustapha Goniri, A.-G., Yobe State. The underlined, that is: Hon. Justice Nasiru Ajana, CJ, Kogi State; E. C. Ukala, SAN and Tijjani Inuwa-Dutse, mni, did not hear the PW1 testify on 14th September, 2017.

On the adjourned date, 6th December, 2017, the LPDC convened and heard the evidence of the DW1 (pages 89 – 91), the case of the complainant having been concluded and closed earlier on 31st October, 2017. The panel on the said 6th December, 2017 that heard the testimony of the DW1, the sole defence witness comprised – J.B. Daudu, SAN – Chairman, and 5 other members, that is; Hon. Justice Abdu Aboki, PJCA, Hon. Justice Nasiru Ajana, CJ, Kogi State; E.C. Ukala, SAN; Tijjani Inuwa-Dutse, mni and Hon. Ahmed Mustapha Goniri, A.-G., Yobe State. On the said 6th December, 2017 (at page 91) parties were directed to file written addresses and the matter was adjourned to 30th January, 2018 for adoption of the addresses.

On the said 30th January, 2018, the LPDC reconvened (at pages 131 – 132) with the panel comprising J. B. Daudu, SAN, Chairman, and four other members namely: Hon. Justice Nasiru Ajana, CJ, Kogi State; E.C. Ukala, SAN; Nella Andem Rabana, SAN and Oluseun Abimbola, A.G. Oyo State (the new entrant who did not hear any witness testify). Apart from some interlocutory preliminaries (for regularisation of processes), nothing serious took place on the said 30th January, 2018. A further adjournment was fixed for 28th February, 2018.

Six members of the panel comprising J.B. Daudu, SAN – Chairman, and five others i.e. Hon. Justice Abdu Aboki, PJCA, Hon. Justice Marshall Mukoro, CJ, Delta State; E. C. Ukala, SAN; Tijjani Inuwa-Dutse, mni; and Hon. Oluseun Abimbola, A.-G., Oyo, State reconvened on the said 28th February, 2018 and took the written addresses of the parties as the final submission of each party’s case. See page 153 of the record. Thereafter, the Committee adjourned thus:
“our final Direction will be delivered on 21st March, 2018”.

Hon. Oluseun Abimbola; A.-G., Oyo State did not hear any witness testify. Hon. Justice Marshall Umokoro, CJ Delta State and Nella Andem Rabana, SAN did not hear the DW1 testify.

On Wednesday, 21st March, 2018 the LPDC reconvened and delivered its decision wherein it made the Direction that the appellant was aggrieved with. The alleged offensive Direction is reproduced at pages 181-192. It is duly certified that pages 180 – 192 of the record was the authentic record of the LPDC as the proceedings of the said date. Nine members of the LPDC were said to be those who took the decision reproduced at pages 181 – 192. They are J. B. Daudu, SAN – Chairman; and 8 others namely: Hon. Justice Abdu Aboki, PJCA; Hon. Justice Nasiru Ajana, CJ, Kogi State; Hon. Justice Marshall Mukoro, CJ, Delta State, Yusuf Ali, SAN; E. C. Ukala, SAN, Nella Andem-Rabana, SAN; , Tijjani Inuwa-Dutse, mni and Ahmed Goniri, A.-G., Yobe State. Mr. Yusuf Ali, SAN was appearing for the first time on the panel. He is shown to be participating in the decision without hearing any witness testify.

My Lords, I agree with the appellant that there is no doubt that the membership committee (apart from the 3 – J. B. Daudu, SAN – Chairman; E.C. Ukala, SAN and Tijjani Inuwa-Dutse, mni who were consistent) was at various times differently constituted at all material stages of the proceedings leading up to their final decision and Direction. I also agree with the appellant that the compositions of the Committee from the first day through the diverse dates PW1, PW2 and DW1 testified, the date of final addresses and the day its decision/Direction was given were oscillatory and different.

In Dr. Osaretin George 12 Ezebuwa v. NBA & Anor. SC.334/2019 of 18th June, 2021, I expressed the opinion that “deciding without hearing” is an aspect of a denial of fair hearing.

Fair hearing, as a fundamental procedure, is the sine qua non in all proceedings before judicial or quasi-judicial bodies like the LPDC: Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394.

The nature of proceedings at the LPDC is quasi-criminal, and is quasi-judicial: LPDC v. Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Okike v. LPDC (2005) 15 NWLR (Pt. 949) 471. Accordingly, absence of fair hearing vitiates the proceedings of the LPDC, a quasi-judicial body, no matter how well the decision may have been written: Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201; Otwiwa v. Kwaseko 2 WACA 230; Egba N. A. v. Adeyanju (1936) NLR 77; Damoan v. Talbi 12 WACA 167; Runka v. Katsina N.A. 13 WACA 98.

The decision, culminating in the Direction of 21st March, 2018, as it affects the appellant is hereby set aside in its entirety. The matter is hereby remitted for hearing de novo by a panel differently constituted.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the Direction of the 2nd respondent delivered on 2nd day of March, 2018, Coram J.B. Daudu SAN (Chairman), Hon. Justice Abdu Aboki, PJCA (as he then was), Hon. Justice Nasiru Ajanah, CJ, Kogi (deceased), Hon. Justice M. Umukoro, CJ, Delta, Yusuf Ali SAN, E.C. Ukala, SAN, Nella Andem Rabana, SAN, Tijjani Inuwa-Dutse, mni and Hon. Ahmed Goniri, A.-G., Yobe State wherein the appellant was found guilty in respect of the three counts contrary to Section 12(1)(ii) of the Legal Practitioners Act (Revised). The 1st respondent also ordered that the name of the appellant be struck out from the roll of Legal Practitioners. (See pages 182-192 of the printed record). Being dissatisfied with the Direction of the 2nd respondent, the appellant has appealed to this Court via an amended notice of appeal amended with the leave of this Court.

Brief Facts
The complaint against the appellant arose from a petition written by his client alleging that the appellant breached the Rules of Professional Conduct in managing his client’s property. (See page 13 to 15 of the printed record). The appellant’s client alleged the following thus:
i. The petitioner donated a Power of Attorney in favour of the respondent over three of her properties situate at 97, Isola Road Mushin, Lagos, 99 Isolo Road, Mushin, Lagos and 13 Shyllon Street, Ebute Meta West, Lagos, empowering the respondent to collect rents from tenants occupying the various apartments and remit same to the petitioner after deducting 10% of total money collected as his fees.
ii. The petitioner instructed the respondent to commence three actions with respect to the properties at 97 and 99 Isolo Road, Mushin, Lagos for recovery of possession against three tenants and paid the respondent the sum of N60,000.00 (Sixty Thousand Naira) for that purpose before travelling abroad for medical treatment.
iii. The respondent let out the said properties without informing the petitioner, collected the sum of N1,805,000.00 (One Million, Eight Hundred and Five Thousand Naira) from the tenants and only remitted the sum of N500,000.00 (Five Hundred Thousand Naira) to the petitioner.
iv. The respondent also collected N350,000.00 in respect of the petitioner’s property at 13 Shyllon Street, Ebute-Metta and N375,000.00 in respect of property at 223 Ijegun Road without her authority.
v. The respondent has only remitted the total sum of N190,000.00 (Nine Hundred and Ten Thousand Naira) outstanding and due to the petitioner.

The 1st respondent having found a prima facie case of professional misconduct against the appellant filed a complaint before the 2nd respondent. See pages 3-4 of the printed record.

On the 24th day of March, 2021 date of hearing, learned counsel for the appellant, Anozie O. Obi Esq adopted the brief of argument filed on the 17/2/2020 and deemed filed on 24/3/2021 in which appellant distilled three issues for determination, viz:-
1. Whether having regard to the variations in the composition of the Committee at various times and stages of the proceedings, the Direction dated 21st day of March, 2018 given against the appellant by the Hon. Trial Committee were not done in utter breach of the appellant’s rights to fair hearing; and thus, a nullity (Distilled from Grounds 4 & 5)
2. Whether the 2nd respondent was not wrong for not properly considering the relevant material fact and evidence placed before it in reaching the conclusion that appellant is guilty of infamous conduct in a professional sense and consequently giving its Direction against the appellant. (Grounds 1 & 2).
3. Whether the Direction delivered by the 2nd respondent against the appellant is not unreasonably harsh and underserving considering the weight of evidence relied upon. (Ground 3)

Learned counsel for the 1st respondent. Yusuf Olatunji Ogunrinde Esq adopted the brief of argument filed on 27/10/2020 and deemed filed on 24/3/2021. He distilled two issues for determination, viz:
(a) Whether having regard to the facts and circumstances of this case and the extant provisions of the law, the appellant’s right to fair hearing was breached by the alleged variations in the composition of the Committee at various stages of the proceedings thereby rendering the Direction given by the 2nd respondent on the 21st day of March 2018 a nullity. (Grounds 4 & 5 of the amended grounds of appeal)
(b) Whether having regard to the facts, circumstances and the extant provisions of the law, the Direction given by the 2nd respondent against the appellant was right, reasonable, justiciable and deserving? (Distilled from Grounds 1, 2 & 3 of the amended notice of appeal)

Learned counsel for the 2nd respondent, Adedayo Adedeji, Esq adopted the brief of argument filed on 23/2/2021 and deemed filed on 24/3/21 in which were formulated two issues for determination which are thus:-
1. Whether having regard to the variation in the composition of the 2nd respondent, the right to fair hearing of the appellant was breached. (Grounds 4 & 5 of the amended notice of appeal)
2. Whether having regard to the state of evidence led before the 2nd respondent, the 2nd respondent was correct in finding that the appellant was guilty of infamous conduct in discharging his professional duties and directing the appellant’s name be struck off the Roll of Legal Practitioners in Nigeria. (Grounds 1, 2 and 3 of the amended notice of appeal)

I shall confine my consideration on issue 1 of the 2nd respondent as it is fundamental and with the possibility of it alone determining the appeal.

Issue 1
Whether having regard to the variation in the composition of the 2nd respondent, the right to fair hearing of the appellant was breached.
Learned counsel for the appellant contended that the record of appeal revealed that the membership of the Committee was differently composed at different stages of the proceedings and this raised the issue of the infraction of the fair hearing rights of the appellant as the Court or tribunal must be properly composed throughout the proceedings before it and not just at the commencement. He cited Sokoto State Government v Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 at 490 etc.
That variations in the composition of the membership of the Committee rendered the proceedings of the Committee and its Direction against the appellant a nullity.

For the 1st respondent, learned counsel submitted that the principle and concept of fair hearing is not stipulated for the enjoyment of an appellant alone, as it applies, enures to the respondents also. He cited Orugbo v. Una (2002) LPELR-2778 (SC), (2002) 16 NWLR (Pt. 792) 175.

That the variation in the composition of the panel of the 2nd respondent did not occasion any miscarriage of justice which is the overriding factors. He referred to Oke v. Mimiko & Ors (2013) LPELR-21368(SC), (2014) 1 NWLR (Pt 1388) 225.

That appellant had not complained of a denial of fair hearing during the proceedings and so raising it now is a misdirection and an attempt to steal the march on appeal and shows a litigant sleeping on his right which the Court should not allow him to take advantage of since equity does not pay the indolent. He cited P.D.P. & Ors v. Ezeonwuka & Anor (2017) LPELR-42563(SC), (2018) 3 NWLR (Pt.1606) 187.
That the fair hearing right of the appellant was not breached.

For the 2nd respondent, it was submitted that item 1 of the supplementary provision and Section 11 of the Legal Practitioners Act (LPA for short) is that the quorum of the 2nd respondent at any sitting shall be five and so a mere variation in the composition of a panel which does not affect the judgment or decision of such a body cannot render the judgment a nullity. He cited Ndukwe v. LPDC & Anor (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt.1026) 1.

The crux of the matter under discourse herein is whether, having regard to the facts and circumstances of this case and the extant provisions of the law, the appellant’s right to fair hearing was breached by the variations in the composition of the Committee at various stages of the proceedings with the result of the Direction given by the 2nd respondent on the 21st day of March, 2018 becoming a nullity.

It is settled in law that fair hearing, according to the law, envisages that parties to a case be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties. See the case of Okike v. L.P.D.C. (2005) LPELR-2450(SC), (2005) 15 NWLR (Pt. 949) 471 Per Salihu Modibbo Alfa Belgore, JSC. (at Pp. 53-54).

There is no debating that Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) entrenches, guarantees and provides for the parties’ rights to fair hearing. For ease of reference, the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is reproduced below:
“36(1) In the determination of his civil rights and obligations, including any questions or determination by or against any government authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The principle or concept of fair hearing is not stipulated for the enjoyment and delight of an appellant alone: it applies and enures to the respondent also.

This Court had severally advised all Courts in Nigeria to exercise some caution while adjudicating on matters before them bordering on fair hearing provision in the Constitution. Per Niki Tobi, JSC in Orugbo v. Una (2002) LPELR-2778 (SC), (2002) 16 NWLR (Pt. 792) 175.

Another look at the arguments on either side would show as follows:-
The slant of argument taken by the 1st respondent is that the variation in the composition of the panel of the 2nd respondent being complained about by the appellant did not occasion any miscarriage of justice whatsoever. That the appellant has not established that there has been a breach of any law, rule or regulation. In fact the appellant has not also shown to this honourable Court that he has suffered any injustice or that his evidence; whether oral or documentary were not considered by the 2nd respondent. That contrary to the appellant’s submission on issue one in his brief of argument that having regards to the facts and circumstances of this case and the extant provisions of the law, the appellant’s right to fair hearing was not breached by the alleged variations in the composition of the 2nd respondent at various stages of the proceedings to render the Direction given by the 2nd respondent on the 21st day of March, 2018 a nullity.

The 1st respondent submits that the constitution and composition of the 2nd respondent was done in accordance with the extant laws and in the manner which ensured its independence and impartiality as provided for under the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, quoted above.

It is my view that justice and the right to fair hearing is not an exclusive preserve of one party alone. All parties before a Court or Tribunal are entitled to justice and fair hearing.

1st respondent further contends that an appellant alleging breach of his right to fair hearing must demonstrate to the satisfaction of the Court the breach of the right to fair hearing and the miscarriage of justice occasioned to him by such infraction and not just of merely alleging the breach.

Miscarriage of justice connotes that decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights of the party. It means a reasonable probability of more favourable outcome of the case for the party alleging which can be seen as injustice done to the party alleging it.
Again to be said is that miscarriage of justice is such a departure from the rules which permeate all judicial process to make what occurred not in the proper sense of the word, judicial procedure at all.
It is to be noted that what constitutes a miscarriage of justice varies, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law. See Oke & Anor v. Mimiko & Ors (2013) LPELR-21368 (SC), (2014) 1 NWLR (Pt. 1388) 225; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270 at 290- 291.

The position of the 2nd respondent is that the variation in the members of the Committee at various sittings did not affect the proceedings and the Direction of the 2nd respondent since the Chairman at all the sessions was present and the quorum duly constituted. The case of Ndukwe v. L.P.D.C. & Anor (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt. 1026) 1 was relied upon by the 2nd respondent.

The appellant of course took a contrary position stating that the variations in members of the Committee in the course of the proceedings was a breach of the right to fair hearing of the appellant and a miscarriage of justice was the result as the proceedings and Direction were rendered null and void.

It is trite in law that the principle of fair hearing is fundamental to all Court procedures and proceedings. By virtue of Section 36(1) of the 1999 Constitution (as amended), the issue of composition of the Courts or Tribunal is intrinsic to the fulfilment of the fair hearing principles as enshrined in the Constitution. A follow up to that is that the issue of constitution and composition of a Court or Tribunal is tied inextricably to its jurisdiction, hence the Court or Tribunal must be properly composed throughout the proceedings before it and not just at the commencement. See Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394; Sokoto State Government v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 at 490.

At this point, I will call in aid the facts and circumstances prevailing in this instance as a case has to be considered within its peculiar circumstances and not in the abstract.

It is trite law that where credibility of a witness is in issue, the person who is in the vantage position to decide it will be the one who heard evidence on both sides and watched the demeanor of the witnesses. In other words, a person who did not take part when witnesses were called by the complainant and the defendant cannot be in a position to decide who has told the truth from the person who was lying. See the case of Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) 365.

In the instant case on the 14th day of September, 2017 when PW1 testified, Hon. Justice Nasiru Ajanah, CJ, Kogi State, Yusuf Ali SAN, Tijjani Inuwa-Dutse, mni and E.C Ukala, SAN were absent and they constituted part of the Panel that delivered the Committee’s Direction on 21/03/2018.

Also on the 31st day of October, 2017 at page 80 of the record of appeal when PW2 testified and vigorously cross-examined by the appellant’s Counsel, Yusuf Ali, SAN was absent and he was part of the Panel that deliberated on matters relating to the Committee’s Direction given on the 21-03-2018.

Similarly, on the 6th day of December, 2017 when the DW1 (the appellant), testified and was cross-examined by the complainant’s counsel as contained in pages 89 – 91 of the record of appeal, Hon. Justice M. Umukoro, CJ, Delta State, Yusuf Ali, SAN and Nella Andem Rabana, SAN were absent and they constituted part of the Panel that gave the Committee’s Direction on the 21/03/2018.

Finally, on the 28th day of February, 2018 when the final addresses of counsel were adopted as contained at page 153 of the Record, Hon. Justice Nasiru Ajanah, CJ, Kogi State; Yusuf Ali, SAN, Nella Andem Rabana, SAN and Hon. Justice Ahmed Goniri, A.G. Yobe State were also absent and they all participated in the deliberations relating to the Committee’s decision and Direction delivered on the 21/01/2018 against the appellant.

Clearly, there were discrepancies in the membership of the panel on the first day of the proceedings, the various days the witnesses testified, the day the final addresses of counsel were adopted and the day the Direction of the Committee was given. Fair hearing is a substantive right and entails both fairness of the hearing and of the decision.

The Panel that delivered the Committee’s Direction on the 21st day of March, 2018, being different from the Panel that sat on the day the plea of the appellant was taken; when the testimonies of PW1, PW2 and DW1 were taken; and also the day the final addresses of counsel was taken, cannot be said to have given the appellant fair hearing.

The 2nd respondent had cited the case of Ndukwe v. LPDC & Anor (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt. 1026) 1 to support their stand that the variations in the membership of the Committee was not fatal. I differ as the facts and decision in Ndukwe v. L.P.D.C. (supra) are not on all fours with the case in hand. I would quote that case for full reference. Ndukwe v. L.P.D.C. & Anor (2007) LPELR-1978 (SC), (2007) 5 NWLR (Pt. 1026) 1. Wherein Onnoghen, JSC, put it admirably thus. It therefore means that learned counsel for the appellant concedes the contention of the learned counsel for the 1st respondent that by the combined effect of Item 1 of the Second Schedule to Cap. 207, Laws of the Federation, 1990 as amended by Section 15(a) and of Decree No. 21 of 1994 read together with Section 11(2) of Decree No. 21 of 1994, the quorum of the Disciplinary Committee shall be five persons, three of whom shall be as stated in the enactment. It is clear from page 23 of the record that six and five persons as members were present at the hearing and judgment, and that they all belong to the class of persons provided in Section 11(2) of Decree No. 21 of 1994. From the above, it is my considered view that the argument of learned counsel for the appellant on the issue of quorum is misconceived and is consequently discountenanced by me. On the alleged participation of Mr. Nwanodi at the delivery of the judgment when he did not participate in the hearing of evidence, learned counsel for 1st respondent had submitted that the inclusion of the name of Mr. Nwanodi in the record of that day is an error committed by the typist who inadvertently included that name particularly as the panel in which Mr. Nwanodi is a member held proceedings soon after the delivery of judgment in question. As I stated earlier in this judgment, there is no reply brief by the appellant. In any event, the status of the 1st respondent as an administrative tribunal or body, must be constantly kept in focus so as not to confuse its proceedings and judgments with those of the regular Courts constituted by three or more member just as the Court of Appeal and say, the Supreme Court where each member of the panel that heard a particular case must render his own opinion or judgment/decision in writing. Even there, all those who sat and heard the case need not be present when the judgment is read in Court. It has to be noted that learned counsel for the appellant, has not accused M. Nwanodi of being a signatory to the judgment delivered that day, in fact, he concedes that he is not a signatory thereto. It is equally not the case of the appellant that the decision of the 1st respondent was not deliberated upon by the member of the panel before it was arrived at and reduced into writing by the Chairman who signed and read same in public. It is important to note that at the delivery therefore, five of the six members who heard evidence were present and none dissented or expressed a contrary opinion. It is very clear therefore that the fact that the other members who did not express a contrary opinion confirms their agreement with the judgment as read by the Chairman of the panel and I therefore come to the irresistible conclusion that the decision of the 1st respondent in the circumstances of the case cannot be vitiated.”

It is seen in the case of Ndukwe (supra) that Mr. Nwanodi was neither part of the proceedings at any point or signatory to the Direction as the evidence showed. Also the six members who participated at the hearing all signed the Direction and present at the delivery. Those are not akin to the current situation where severally there were variations from time to time and the Direction signed by some of those who had nothing to do with the hearing and the decision making. A fair trial cannot be said to have taken place since the rules of natural justice relating to fair hearing have been breached and the proceedings and Direction a nullity in the light of the breach. It is of no moment that a similar decision would have been reached in the absence of such infraction. See S.A.P. Ltd. v. Minister of Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391 at 407-408; Labour Party v. I.N.E.C. (2009) All FWRL 478 at 233 & 244, (2009) 6 NWLR (Pt.1137) 351; Porbeni v. Pabod Finance & Investment Co. (2001) FWLR (Pt.63) 84, (2002) 3 NWLR (Pt.754) 452; Madukolu v. Nkemdilim (1962) 1 All NLR 5 & 7, (1962) 2 SCNLR 341.

There is no denying the fact that the fair hearing rights of the appellant had been breached in the light of the variously ill constituted panels and the proceedings and the Direction were rendered a nullity and due to be struck out. Appeal is therefore allowed and the Direction struck out.
I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother, Ejembi Eko, JSC just delivered. The reasoning and conclusion therein reflect my views in this appeal.

The settled position of this Court as held in: Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 885) 427 @ 436 at 438 C-E; Sokoto State Government v. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt. 1034) 466 @ 497 A-B; 492-493 H-B; Nyesom v. Peterside & Ors. (2016) 7 NWLR (Pt. 1512) 452 @ 504-505 C-D; Nwalutu v. N.B.A. (2019) 8 NWLR (Pt. 1673) 174 @ 195 B-D & 195 B-G; Adeleke v. I.N.E.C. (2019) 6-7 SC (Pt. 1) 35; (2020) 11 NWLR (Pt. 1734) 17; Kunle Kalejaiye v. L.P.D.C. (2019) LPELR – 47035 (SC), (2019) 8 NWLR (Pt.1674) 365, is to the effect that where a decision is rendered by a panel which was differently constituted during the course of the hearing and some of the members of the panel who rendered the decision or contributed thereto were not present throughout the hearing, it amounts to a breach of the right to fair hearing. The proceedings and the decision predicated thereon are a nullity and liable to be struck out.
In the circumstances, I allow this appeal and abide by the consequential orders made in the lead judgment.
Appeal allowed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The present appeal is a natural fall out of the decision, (Direction) of the Legal Practitioners Disciplinary Committee holden at Abuja, delivered on March 21, 2018 in petition No. BB/LPDC/205/2016. By the said decision, the Committee below convicted the appellant for professional infamous conduct punishable under Section 12(1)(ii) of the Legal Practitioners’ Act (Revised), and accordingly ordered that his name be struck off the Roll of the Legal Practitioners kept at the Supreme Court of Nigeria. The appellant was equally barred from carrying on the trade or business of a Legal Practitioner.

Background Facts
The appellant is a legal practitioner. He was called to the Nigerian Bar in 1993. He carries on Legal Practice in Lagos State. Mrs Elizabeth Abiola Gbolade, the petitioner was the erstwhile client of the appellant. The substance of the petition against the appellant is contained in the NBA General Secretary’s letter, dated August 18, 2016 copiously alluded to by the Committee below at page 1-82 of the record:
1. The petitioner donated a Power of Attorney in favour of the respondent over three of her properties situate at 97, Isolo Road, Mushin, Lagos, 99 Isolo Road, Mushin, Lagos and 13, Shyllon Street, Ebute-Meta West, Lagos, empowering the respondent to collect rents from tenants occupying the various apartments and remit same to the petitioner after deducting 10% of total money collected as his fees.
2. The petitioner instructed the respondent to commence three actions with respect to the properties at 97 and 99 Isolo Road, Mushin, Lagos for recovery of possession against three tenants and paid the respondent the sum of N60,000.00 (Sixty Thousand Naira) for that purpose before travelling abroad for medical treatment.
3. The respondent let out the said properties without informing the petitioner, collected the sum of N1,805,000.00 (One Million, Eight Hundred and Five Thousand naira) from the tenants and only remitted the sum of N500,000.00 (Five Hundred Thousand Naira) to the petitioner.
4. The respondent also collected N350,000.00 in respect of the petitioner’s property at 13 Shyllon Street, Ebute-Meta and N375,000.00 in respect of property at 233 Ijegun Road without her authority.
5. The respondent has only remitted the total sum of N910,000.00 (Nine Hundred and Ten Thousand Naira) outstanding and due to the petitioner.

The parties having exchanged their respective pleadings, the petition proceeded to hearing. At the end of which the Committee delivered the vexed decision, (Direction) thereof on the said March 21, 2018, to the conclusive effect:
Direction
(i) That the 3-counts in the complaint are found proved against the respondent, Olayori Muyideen Esq.
(ii) That you, Olayori Muyideen, is found guilty of infamous conduct in a professional sense punishable under Section 12(1)(ii) of the Legal Practitioners Act (Revised) as charged in all 3 counts of the Complaint. We accordingly DIRECT THE CHIEF REGISTRAR OF THE SUPREME COURT OF NIGERIA as follows;
(iii) The name of the respondent Olayori Muyideen shall forthwith be STRUCK OFF the Roll of Legal Practitioners kept at the Supreme Court of Nigeria and shall cease from the date of this Direction from carrying on the trade or business of a Legal Practitioner accordingly, he is not parade himself or allow himself to be paraded as a Legal Practitioner and he is not to engage in or participate in the practices of law in any manner or form forthwith.
(iv) We further Direct as it is within our power to do that the respondent, within 30 days from the date of this Order i.e. today 21st day of March 2018 refund or return to the Petitioner Madam Elizabeth Abiola Gbolade of No.5 Akhimien Street, Ijegun, Alimosho, Lagos the sum of N1,129,500.00, (One Million, One Hundred and Twenty-nine Thousand Naira) only through the Complainant in this matter.
(v) THE CHIEF REGISTRAR OF THE SUPREME COURT is hereby DIRECTED to effect the above orders forthwith. We further order that NOTICE of this DIRECTION be immediately brought to the attention of the respondent by service on him personally or at his last known address (the presence of the respondent at the proceeding of this Committee where this DIRECTION is read shall be deemed to be sufficient personal service) and by publication in any edition of the PUNCH Newspaper and by publication in the Federal Gazette, as required by law. Copies of this Direction must also be served on the President of the Nigerian Bar Association who will take steps to notify the General Council of the Bar, National Executive Committee and other organs of the NBA with the Direction of this Committee. We also direct that the entire Judgment encompassing this Direction shall be brought to the attention of their lordships, the Chief Justice of Nigeria, President Court of Appeal, the Hon. Chief Judges of the High Court of Lagos State, Federal High Court and High Court of States of the Federation, Heads of all other Courts in the FCT and in Nigeria, the Attorney-General of the Federation and the entire Attorney’s General of the remaining 36 States of the Federation. The order shall also be served on the Inspector-General of Police, the Commissioner of Police of Lagos State and the respective Commissioners of Police in all the States of the Federation.

The extant amended notice of appeal, deemed properly filed on 24/03/2021, is predicated upon a total of 5 grounds, thereby seeking the following reliefs:
1. An order allowing the appeal;
2. An order setting aside the Direction given on 21st March, 2018 by the Legal Practitioners Disciplinary Committee that sat in Abuja in this matter presided by by J.B. Daudu, SAN as Chairman, Hon. Justice Abdu Aboki, PJCA, Hon. Justice Mashal Umukoro, CJ, Delta, E.C. Ukala, SAN, Tijjani Inuwa-Dutse, mni and Hon. Oluseun Abimbola, A.G. Oyo State as members.
3. An order discharging the appellant of the complaints against him.

4. An order restoring the name of the appellant on the Roll of Legal Practitioners in Nigeria.

On March 24 when the appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the submissions contained in the respective briefs of argument thereof. Thus warranting the Court to reserve judgment to today.

The appellant’s brief was settled by Anozie O. Obi Esq, on 10/02/2020. It spans a total of 16 pages. At pages 4 – 5 thereof, three issues have been formulated:
1. Whether having regard to the variations in the composition of the Committee at various times and stages of the proceedings, the Direction dated 21st day of March, 2018 given against the appellant by the Hon. Trial Committee were not done in utter breach of the appellant’s right to fair-hearing; and thus, a nullity. (Distilled from grounds 4 & 5)
2. Whether the 2nd respondent was not wrong for not properly considering the relevant material fact and evidence placed before it in reaching the conclusion that the appellant is guilty of infamous conduct in a professional sense and consequently giving its direction against the appellant. (Grounds 1 & 2)
3. Whether the Direction delivered by the 2nd respondent against the appellant is not unreasonably harsh and undeserving considering the weight of evidence relied upon. (Ground 3)

Contrariwise, the 1st respondent’s brief was settled by Yusuff O. Ogunrinde Esq on 27/10/2020. That brief spans 29 pages.

At pages, 4 and 5 thereat, two issues have been raised:
(a) Whether having regards to the facts and circumstances of this case and the extant provisions of the law, the appellant’s right to fair hearing was breached by the alleged variations in the composition of the Committee at various stages of the proceedings thereby rendering the Direction given by the 2nd respondent on the 21st day of March, 2018 a nullity? (Distilled from grounds 4 and 5 of the amended notice of appeal)
(b) Whether having regards to the facts, circumstances and the extant provisions of the law, the Direction given by the 2nd respondent against the appellant was right, reasonable, justifiable and deserving? (Distilled from grounds 1, 2, and 3 of the amended notice of appeal).

The 2nd respondent’s brief settled by Adedayo Adedeji Esq. on 23/02/2021, spans 13 pages. At page 3 thereof, two issues have been couched:
1. Whether having regard to the variation in the composition of the 2nd respondent, the right to fair hearing of the appellant was breached? (4 & 5 of the amended notice of appeal)
2. Whether having regard to state of evidence led before the 2nd respondent, the 2nd respondent was correct in finding that the appellant was guilty of infamous conduct in discharging his professional duties and directing the appellant’s name be struck off the Roll of Legal Practitioners in Nigeria? (1, 2 and 3 of the amended notice of appeal)

It is obvious from the nature and circumstances surrounding the case leading to the instant appeal, as depicted by the records, the issue No.1 formulated by the appellant raises the crucial question of jurisdiction:
1. Whether having regard to the variations in the composition of the Committee at various times and stages of the proceedings, the Direction dated 21st day of March, 2018 giving (sic) against the appellant by the Hon. Trial Committee were not done in utter breach of the appellant’s rights to fair hearing and thus, a nullity. (Distilled from grounds 4 & 5)

As copiously alluded to above, the first issue raises the very crucial question that having regard to the variations in the composition of the Committee below at various times and stages of the proceedings, the Direction given against the appellant was not in breach of his right to fair hearing, and thus a nullity. Undoubtedly, the issue raises a very fundamental question of jurisdictional competence.

Invariably, the term jurisdiction, in jurisprudential context, pertains to a Court’s power to determine (decide) a case or issue an order (decree). Also termed competent jurisdiction; Coram judice; adjudicatory jurisdiction.

A fortiori, a Court of competent jurisdiction denotes a Court that is duly cloaked with the power or authority to adjudicate upon a particular act (matter). That is to say, a Court duly recognized by law as possessing the right, power or authority to adjudicate a dispute or controversy. Also termed competent Court (Tribunal). See Black’s Law Dictionary, 11th edition (2019) @ 445 & 1017.
Contradistinctively, a Court devoid of jurisdictional competence may be likened to a ‘Kangaroo Court’ properly so-called. Most interestingly, it is trite that a Kangaroo Court is a caricature, self appointed tribunal or mock Court in which the rules of law and justice are wantonly disregarded, perverted, or parodied:
Kangaroo Courts may be assembled by various groups, such as prisoners in a jail (to settle disputes between inmates) and players on a baseball team (to “punish” team mates who commit fielding errors).
… A Court or tribunal characterized by unauthorized or irregular procedures, especially so as to render a fair possible proceeding impossible … A sham legal proceeding.
See Black’s Law Dictionary, 11th Edition 2019 (opcit) @ 448.

In the instant case, it is so obvious on the face of the records of appeal, that the Committee below was differently composed or constituted on various dates and stages of the proceedings thereof. Indeed, there was a disturbing recurring decimal in the composition of the Committee throughout the proceedings thereof.

By virtue of the records, the Committee below sat on a total of ten different occasions:

(i) 25/01/2017: page 52;
(ii) 02/03/2017: Page 53;
(iii) 29/03/2017: Page 54 – 55;
(iv) 22/05/2017: Page 63 – 64;
(v) 14/09/2017: Page 73 – 77;
(vi) 31/09/2017: Page 80 – 82;
(vii) 06/12/2017: Page 89 – 91;
(viii) 30/01/2018: Page 131 – 132;
(ix) 28/02/2018: Page 153;
(x) 21/03/2018: Page 83 – 193.

Undoubtedly, the composition of the Committee on the very first day it sat and heard the testimonies of the PW1, PW2, and DW1, the day the learned counsel to the parties adopted their respective written addresses, and the day it delivered its decision (Direction) were at variance. Yet, it is a trite fundamental doctrine, that the issue of composition of a Court of law or tribunal is fundamentally intrinsic to the fulfillment of the requirement of the right to fair hearing, cherishingly enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended:
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
My noble Lord, the fact that this Court has reiterated in a plethora of formidable authorities, the importance of upholding the fundamental right to fair hearing of parties by the Courts in the course of administration of justice process is not controversial, at all.
Most particularly, not too long ago in the case of Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) 365, this Court had a cause to aptly hold:
The issue of composition of a Tribunal is intrinsic to the fulfillment of the fair hearing requirements of Section 36(1) of the Constitution. A Court or Tribunal’s constitution must be such that guarantees its independence and impartiality and guarantees fair hearing to the accused. Where the panel is constituted in such a way that it affects a person’s right to fair hearing, whatever decision is reached by such a panel will result in a nullity. Where some members of a Tribunal who gave judgment were not present throughout the proceedings, and did not hear all the evidence, this violates the whole trial, and an appellate Court has no option but to declare the whole proceedings before the Tribunal a nullity. In the instant case the membership of the Committee which found the appellant guilty of infamous conduct and directed that his name be struck out from the Roll of legal practitioners in Nigeria was not consistent.
In my considered view, the circumstances surrounding the issues in Kalejaiye v LPDC (supra) are on all fours with the instant case. Thus, by the fundamental doctrine of stare decisis (Judicial Precedent), this Court ought to strictly be bound by its previous decision in Kalejaiye’s case (supra).

It is noted (page 191, 1(ii)) that the phrase “found guilty” has been used by the Committee below in the course of the judgment thereof. However, in my considered view, such phrases as “Criminally charged or liable”, “convicted or found guilty”, which bear some connotations of criminality ought not to be used in cases pertaining to professional disciplinary proceedings such as the instant one. As aptly postulated by the UK Supreme Court not too long ago:
The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public confidence in the integrity of the profession, and to uphold proper standards of behaviour. See e.g. Bolton v. Law Society (1994) 1 WLR 512, 518, Per Sir Thomps Bingham MR; Gupta v. General Medical Council (2002) 1 WLR 1691, Paragraph 21, Per Lord Rodger.
See R. (On The Application of Coke-Wallis) v. Institute of Chartered Accountants In England And Wales (2011) LPELR-17806 (UK SC), Per Lord Collins @ 46 paragraphs D – F.

In the circumstances, the issue No. 1 ought to be and same is hereby resolved in favour of the appellant.

Hence, against the backdrop of the foregoing far-reaching postulates, and the well detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice Ejembi Eko, JSC, I have no hesitation whatsoever in coming to the most inevitable conclusion, to the effect that the instant appeal is meritorious, thus ought to be allowed by this Court. Accordingly, the appeal is hereby allowed by me. I abide by all the consequential orders made in the lead judgment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Appeal allowed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Ejembi Eko, JSC. I am in agreement with the reasoning and conclusion contained therein to the effect that there is merit in the appeal.

Additionally, this Court is bound by its decisions in the case of Kalejaiye v. LPDC & Anor (2019) LPELR-7035 (SC), (2019) 8 NWLR (Pt. 1674) 365. In that case which is almost on all fours with the instant case, this Court allowed the appeal because the composition of the Committee that heard the case of misconduct against the appellant varied on different occasions during the hearing of the complaint. The same is applicable to the instant appeal.

For the above reasons and the more elaborate ones enunciated in the lead judgment, I too allow this appeal. I abide by the consequential orders made.
Appeal allowed.

Appearances:

Anozie O. Obi, Esq., with him, Nonye E. Enwezor, Esq. For Appellant(s)

Yusuf Olatunji Ogunrinde, Esq., with him, Joseph Adeoye, Esq. and Anuoluwapo Olugbenga Adebiyi, Esq. – for 1st Respondent
Adedayo Adedeji, Esq., with him, B. B. Daudu, Esq., F. Al-Mustapha, Esq., M. C. Ezeobidi, Esq. and Haruna Ozi Salami, Esq. – for 2nd Respondent For Respondent(s)

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